Most Docs Practice Defensive Medicine

You may have missed this when it first appeared. Experts from Harvard and the University of Southern California say assumptions made by some analysts that defensive medicine is not an important facet of the high cost of healthcare may be wrong.

Those assumptions were based on data showing that malpractice reforms instituted in some states did little to reduce healthcare spending.

According to the report from the National Center for Policy Analysis (NCPA) about an article in the Wall Street Journal, defensive medicine (“ordering some tests or consultations simply to avoid the appearance of malpractice”) is just as common in states with both low and high malpractice risk. In fact, about 2/3 of doctors in both the low- and high-risk states admitted to practicing defensive medicine.

My experience is that the 2/3 figure is probably a very low estimate. Just about every physician I know has ordered a test or consult strictly to “cover his/her/their asses” if something were to go wrong. I am certain it happens tens of thousands of times per day in the US.

I can cite many examples of defensive medicine:

A young man with chest pain arrives in the ED. After taking a history and examining the patient, the ED MD is 99.95% certain that the patient did not have a heart attack or a pulmonary embolus. But he’s a little short of breath. He remembers a case of a fatal PE with only minimal shortness of breath, orders a blood gas and CT angiogram of the chest.

A young girl comes in with lower abdominal pain, no GI symptoms, no fever. The pain improves over a couple of hours. Could she have appendicitis? Very doubtful —but yes, it is possible. Will she get a CT scan? Yes. People who get sent home from EDs and return with appendicitis often have complications. Complications = lawsuit (delay in diagnosis).

A surgeon readmits a patient with a wound infection after a colon resection. The wound is opened widely and packed. The culture comes back “E. coli sensitive to every antibiotic.” The surgeon knows that the treatment of a wound infection is drainage without antibiotics unless there are systemic signs of infection (fever, elevated WBC, tachycardia). Just “to be safe” he asks an infectious disease doctor to see the patient.

In my opinion, defensive medicine is ubiquitous and not going to go away soon. Healthcare costs will continue to rise.

What can be done about it? If you believe the NCPA article, tort reform is not the answer. Then what is the answer?

I think reducing defensive medicine would take a massive culture shift that is unlikely to happen any time soon. Patients would have to be educated about expectations. For example, despite what the so-called “never events” list says, some complications are not 100% preventable.

And it might require a whole new generation of physicians with a different outlook before meaningful change could occur.

Skeptical Scalpel is a recently retired surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and a surgical sub-specialty and has re-certified in both several times. For the last two years, he has been blogging at SkepticalScalpel.blogspot.com and tweeting as @SkepticScalpel. His blog averages over 900 page views per day, and he has over 5,900 followers on Twitter.

About The Author

SkepticalScalpel

Skeptical Scalpel

Skeptical Scalpel is a recently retired surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and a surgical sub-specialty and has re-certified in both several times. For the last two years, he has been blogging at SkepticalScalpel.blogspot.com and tweeting as @SkepticScalpel. His blog averages over 900 page views per day, and he has over 5900 followers on Twitter.

14 Comments

I completely agree with your thinking about defensive medicine. The examples of defensive medicine that you share in this post are really helpful to understand the actual concept of defensive medicine. Your post is really informative. Good job.

I would guess that 80% of the consults I receive are not required due to the premise of the referring MD not to miss anything. The standard is not attainable. If we wish that any combination of mistake, progression of a problem not evident on initial evaluation and/or a bad outcome leads to lawsuit or any administrative action, these types of money wasting high costs will be the norm.
If we do not place REASONABLE expectations on an imperfect profession(we practice medicine) we have not prayer for meaningful change.
The change does in fact require tort reform as well as guidelines. But the real fact is malpractice is bad practice not bad outcome. We all know that every patient will die with or without medical intervention. Some bad outcomes are inevitable but if patients lawyers etc. believe we have a perfect science instead of an art we will not control the wasteful costs much less than the actual costs od needed medicine.

Dr. Gilliam, thanks for commenting and confirming my thoughts about consults, at least in your own experience. I agree that the expectation of perfection is both unrealistic and unattainable. Yet we are held to it.

On your other blog I told my story of bouts of stomach pai (pain: 6/10) and my doctor ordered a CT, which showed nothing. Then more pain, and he ordered an MRI which revealed acute appendicitis. Due to extensive adhesions it was an open operation. Not only was the appendix ‘gangrenous’, but my cecum also had to be removed after a mass inside was discovered, which didn’t show up on either image test. Patients aren’t necessarily frivolous with expensive treatment because insurance will pay, but are truly fearful that something might be wrong.

Chris, thanks for commenting. I don’t see the difference between fear of getting sued vs. fear of missing something. They both appear to be defensive medicine to me. I don’t think the term ‘defensive medicine’ necessarily refers only to trying to anticipate defending oneself from a suit.

I meant to add that the point of my post is that tort reform has not changed physicians’ behavior so I doubt you’ll be seeing many anecdotes from docs about that. Perhaps it is fear of missing something that is driving defensive medicine and not fear of being sued..

Dr. Porter’s point is well taken. The behavior may be the same but when over utilizers self-assess they don’t see themselves as lawsuit avoiding, they self-report as being thorough and dutiful. Others might see them as hyper fearful of misses and having a lack of tolerance for uncertainty. So culture change is definitely a part of this, but I disagree that it’s far off. Patients, at least, have gotten the idea more and more that over treatment is harmful, rather than just being a cost issue. Doctors, however, still not so much. So how do we get our colleagues to see the light? Not by harping on the cost savings but by pointing out the unintended harms: the NNH if you will. Physicians have to lead on this and stop watching our peers do it wrong while we shrug.

Pik, thanks for commenting. I am not so sure that most patients are aware the problem of overtreatment. Do you have evidence that they are? I think the fact that insured patients don’t really consider costs leads them to expect, even demand more tests. ***
Consider this. Where I live, everyone who tweaks their knee gets an MRI. If an orthopedist examines a patient and thinks the knee is stable, she will still order an MRI. Why? Because the patient wants it. If she doesn’t order it, the patient will go to another orthopedist and get one anyway.

I think the term ‘defensive medicine’ is misleading. In my own experience the fear of missing something has far more to do with comfort and familiarity with a given pathology and very little to do with liability exposure. If I consider my colleagues’ patterns of ordering CT scans for belly pain, one group predictably orders many, another group, few. I doubt tort reform would much affect the pattern of either group because the fear of missing something is not the same as the fear of getting sued. I’d be curious to hear anecdotes of doctors reporting they’d changed their practice after tort reform.

The WSJ article on defensive medicine has caused the trial bar to toot the “see, tort reform doesn’t work” horn. However, so long as physicians get drug into court, defensive medicine will exist. At Patients for Fair Compensation, we beleive an administrative solution is an effective and more efficient manner to resolve medical malpractice claims. Having panels of same-specialty physicians determining medical injury (without patient or physician identification) would create an environment where physicians would no longer be looking over their shoulder for a personal injury attorney. We have introduced this measure in Georgia and Florida but are meeting resistence from med mal carriers. Why? Because an administrative solution would take power away from the insurers and totally eliminate the need for defense attorneys. There would be nothing to defend. The panel of physicians would determine if a physician caused harm to the patient and if so, award compendation based on a schedule of payments as determined by actuaries. The problem of defensive medicine would evaporate over time saving billions of dollars for employers, health plans, taxpayers and patients.

Wayne, this suggestion has come up many times over the years. I doubt it will ever happen as long as 90% of state legislators are lawyers. I have written before about that fact that this is a very profitable business, particularly for plaintiff and defensive attorneys. They have no incentive to change a system that is making them rich.

Actually, Tort reform is the answer. The question is that people have different ideas of tort reform. The NCPA article states that “several economic studies have found that states that have enacted malpractice reforms experienced a mere 2 percent to 5 percent reduction in health care spending compared to states that have not.”
However, they don’t actually state what these malpractice reforms. In general, most malpractice reforms are about caps on pain and suffering. While these caps might decrease the cost of malpractice insurance, they don’t do anything to decrease ones risk of getting sued. If I miss a cancer diagnosis, despite doing all of the right things, I can still get sued. The difference is that my settlement will be smaller in “low risk” states.
In all of the above examples, unnecessary care may have been given because the doctor feared getting sued. The cap on pain and suffering was unlikely a factor in these decisions.
Here’s an idea: true tort reform.
There are many ways to do this, but one way is having guidelines that if a doctor follows, regardless of the result, she can not get sued. If there are guidelines about when to get a CT to rule out PE, when a CT is indicated to r/o appendicitis and when antibiotics are needed with a surgical wound infection, and if a doctor who follows these guidelines can not get sued (regardless of the outcome) then much unnecessary care vanishes.
Currently, whether or not the doctor did the right thing (standard of care) is determined by expert (paid) witnesses. Both the side of course hire their own expert witnesses who will testify that the doctor made the right or wrong decision, which then leaves it up to a jury. More often than not, cases do not go to trial, but rather are settled. If physicians are protected from this, then defensive medicine can become a thing of the past.

Thanks for commenting, Dr. Mintz. You make some good points. I have to disagree with you about guidelines. In a [post I wrote a couple of months ago (http://tiny.cc/st93xw), I quoted a plaintiff’s lawyer who had somehow convinced the American College of Surgeons that lawyers and doctors had common goals.
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I wrote: “Regarding the use of guidelines as a malpractice defense which some have labeled a ‘safe harbor,’ he [the lawyer] says, ‘However, the safe harbor concept becomes unacceptable if it allows guidelines to be used as a ‘get out of jail free’ card. Guidelines must be useful in exonerating and implicating clinician wrongdoing.’ What he seems to be saying is that it’s OK to use a guideline to prove a clinician did wrong, but following guidelines shouldn’t be a fail-safe defense strategy.”